retaliation

It appears that ICE might be showing up in Labor Commissioner Offices in California per a recent article in the Los Angeles Times. These sightings are consistent with other reports statewide of ICE officers showing up to Superior Courts to apprehend undocumented workers earlier this year.

According to the article, there were two recent instances of ICE agents showing up at the office of the Labor Commissioner at locations in Van Nuys and Santa Ana looking for undocumented workers who had brought claims against their employers. The Labor Commissioner’s Office has 18 offices across the state, with the closest offices in Salinas and San Jose. According to the Labor Commissioner, it hears about 35,000 claims per year from employees seeking back pay, wages and penalties from employers.

The Labor Commissioner reported that Federal immigration agents have shown up twice at California labor dispute proceedings to apprehend undocumented workers, in what state officials believe may be cases of employer retaliation. In Van Nuys, the worker who had made a claim for back wages never showed up the day the ICE officer came, and the case was closed. In Santa Ana, the worker had reported retaliation, and the state is still investigating that claim. The ICE agents who came to the Van Nuys and Santa Ana offices asked for the specific workers involved in the proceedings by name, and arrived within a half hour of when the meetings with employers were supposed to begin, Julie Su, the agency’s head stated. Su said she suspects that the employers being accused of underpaying employees tipped off federal immigration agents about the status of the workers. The timing of wage hearings isn’t public, and generally the worker and employer are the only ones who know that information outside of the agency.

In response, officials distributed a memorandum in July instructing their staff to refuse entry to ICE agents who visit its offices to apprehend immigrants in the country without authorization. The memo instructs staff to ask federal immigration agents “to leave our office, including the waiting room, and inform the agent[s] that the labor commissioner does not consent to entry or search of any part of our office,” the memo said. The memo then instructs that if the agents refuse to leave, they should demand a search warrant signed by a judge before allowing them onto the premises.

California’s Labor Code Section 244(b) prohibits the reporting or threatening to report of the immigration status due to that employee’s exercising of a legal right under the Labor Code.

Let us know if our firm can help your company develop policies and best practices to deal with immigration issues in your workplace.

Sergio H. Parra is the lead attorney for L+G’s labor and employment practice. Sergio represents a wide array of employers and businesses in labor and employment related litigation in state, federal and administrative venues. Sergio is also called on a daily basis to provide practical advice on employment matters, including internal complaints and investigations, employment agreements and wage and hour matters.

This question was answered last week by the 9th Circuit of Appeal in the case of Arias v. Raimondo, (2017 BL 214215, 9th Cir., No. 15-16120, 6/22/17). This case arose from an earlier lawsuit in 2006 wherein Jose Arias sued his former employer Angelo Dairy in State Superior Court for various wage and hour violations, including failure to provide overtime, rest and meal periods, and under PAGA. The case had been hotly contested for over five years before it had been finally set for trial for August 15, 2011.

Ten weeks before trial, however, the Angelos’ attorney, Anthony Raimondo, hatched an ”underhanded plan” to have Immigration and Custom Enforcement (“ICE”) arrest and deport Arias at an upcoming deposition. Evidently, after Plaintiff Arias became aware of the plot, he instead agreed to settle the case to avoid the threat of deportation hanging over him and his family. It seemed liked the plot had worked.

However, two years later on May 8, 2013, Plaintiff Arias filed a federal lawsuit against his former employer and their attorney for retaliation under the Fair Labor Standards Act (FLSA). Although Angelo Dairy and its owners settled their part of this case early on, Arias continued his case against the attorney on the theory that he, acting as the Angelos’ agent, retaliated against him, by trying to him deported during the earlier lawsuit.
Although the FLSA primary wage and hour obligations fall squarely on the shoulders on the employers, the 9th Circuit held that the anti-relation provision of the FLSA, was specifically also applied to any agent or “person acting directly or indirectly in the interest of an employer in relation to an employee.” As such, the 9th Circuit rejected Mr. Raimondo’s argument that because he was never Arias’s actual employer, he could not be held liable for retaliation under the FLSA. There is no current word yet if Mr. Raimondo will try to seek review by the United States Supreme Court.

Regardless, this case presents several lessons that all employers should heed. First off, an employer must try to avoid temptation, during the heat of the litigation battle, to create additional risk for the company and, instead focus on narrowing the issues involved and winning a case on its merits. Involving federal authorities in a state law dispute not only raises certain moral and ethical concerns, but may also be a double-edged sword. A telephone call to ICE by an employer to report that one of its employees may not be legally entitled to work in the US, may lead ICE itself to also wonder about the reporting employer’s I-9 and employment verification practices. Most importantly, as evident by the Arias case, an employer must analyze and appreciate there are many protections under both federal and state law that prevent retaliatory conduct after a lawsuit or claim had been filed by the employee.

Lastly, any person involved in making HR decisions, whether as an employee or as attorney, must be cognizant that their own actions and electronic communications may be later scrutinized. In reaching its opinion, the Ninth Circuit Court’s opinion quotes from various text messages sent by Mr. Raimondo to ICE and other attorneys not only where he describes his deportation plot, but where Mr. Raimondo admits doing the same thing on five other occasions. Ouch. As stated by the Court, the FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others… Such a statute must not be interpreted or applied in a narrow, grudging manner.”

Sergio H. Parra is the lead attorney for L+G’s labor and employment practice. Sergio represents a wide array of employers and businesses in labor and employment related litigation in state, federal and administrative venues. Sergio is also called on a daily basis to provide practical advice on employment matters, including internal complaints and investigations, employment agreements and wage and hour matters.